Torts Outline

Professor Noah

Torts – Spring 2016

Duty of Due Care

Default SOC – RPS

Historical development

Writ of trespass – no fault requirement necessary
Brown v. Kendall (1850) – SC MA

Facts: dogfight, D backing up and hit P with stick in the eye
Held: Reversed (for D).Established ordinary care standard, burden on P to prove duty.Industrialization demanded new standard.

Objective test
Adams v. Bullock (1919) – CA NY

Facts: kid swings long wire and hits and electrocutes himself on exposed trolley line
Held: Reversed (for D).Duty, but no breach bc of low 4C.Rejected strict L bc of public good.

Duty of due care only applies where TF’s affirmative conduct creates a risk of physical harm.

Variations in SOC

Common carriers

Used to be heightened SOC
Now moving toward usual RPS
Bethel v. NYC Transit Authority (1998) – CA NY

Facts: wheelchair seat on bus collapsed, injuring P
Held: Remanded (overruled heightened SOC for common carriers).

Usually lessened SOC
Age, intelligence, and experience are circumstances
Typically if below 4, no N
Exception – kids doing adult activities (ie driving) held to normal RPS
Parents not held vicariously L for children’s dangerous activities

Wood v. Groh (kid pries open parent’s gun case) – courts split on whether to give special jury instructions on dangerous instrumentalities or just use normal RPS

Physical disability

Usually lessened SOC
Disability considered under circumstances
Held to RPS of others with similar disabilities
More easily provable than mental disability
Distinguish – voluntary intoxication

RS 283B – intoxication-induced physical impairment is disregarded and D held to normal RPS

Mental disability

Adults with mental deficiencies are held to normal RPS
Fear of fraud and complications
Low intelligence of P used in deciding contributory N

Learners/Beginners – normal RPS SOC
Profession/trade – SOC customary of trade nationwide
Medical profession – medmal special case

Duty – Medmal SOC

Heightened SOC
Custom-based SOC
Locality SOC

Used to be same community standard
Now same or similar community standard
Some courts want national standard, but not quite there

Schools of thought

Allowed to follow respectable minority (Gala v. Hamilton)

Docs in hospitals usu ICs
But, hospitals usu vicariously L for docs as agents
Can be held N for non-vicarious L, ie N hiring or credentialing

Problems of Proof

Establishing expert credibility

Movement towards reducing allowable expert testimony (Sami v. Varn)
Sheeley v. Memorial Hospital (1998) – SC RI

Facts: complication during episiotomy, 2nd yr resident
Held: Reversed (for P).Expert testimony allowed, posited national SOC (which isn’t widely followed).

Getting docs to testify

Conspiracy of silence
Problems of state boards censuring testifying docs

Getting around problems

Res ipsa

States v. Lourdes Hospital (2003) – CA NY
Facts: P goes in for ovarian cyst surgery, results in bad arm, court allows experts to establish res ipsa
Held: Reversed (for P).Allows experts to establish res ipsa as permissible inference.

Reading outside treatises
Blatant breach – no experts needed (Leonard v. Watsonville Community Hospital)

Strict liability?

Docs are only human, are not machines
Policy argument against imposing strict L – hampering new technologies
Increased use of res ips